I love talking about case law, and within case law, philosophical beliefs I always think can create a great debate. And we do have a couple of cases about whether or not COVID is a philosophical belief and therefore protected.

Now, the cases that are coming through are English cases, so that's under the GB Equality Act. But we do also have philosophical belief protection here, so I think we can apply the rules here.

So do you want to want to take us through some of those cases, Seamus?

Allette v Scarsdale Grange Nursing Home

Seamus: Yeah. Look, we are starting to see cases trickle through. We'll probably not see every single case that comes through, but the ones that are reported or that are of interest, they're certainly being reported in media and things like that.

There is a good case. I'll start with a case of Allette v Scarsdale Grange Nursing Home. I'm just going to refer to it as "the home" going forward.

But this is essentially an employee works as a care assistant in a nursing home. We have covered on our previous webinars circumstances around specifically care workers and carers and issues around vaccination and everything else.

So the position was that the home had made a decision that they were going to implement compulsory vaccinations in the home. They specifically dealt with dementia patients, and a number of the patients that they had in the home couldn't be vaccinated because of medical reasons. So they felt that it was all the more important that the staff were vaccinated.

So they decided to make it a condition of their employment, and it was the basic position of, "If you wish to continue to work here, you must have the vaccination".

Now, the claimant was only told about the position . . . I think it was on 12 January 2021. It was the day before her vaccine was due to be administered. And she went to the director in the home and explained her circumstances. She didn't want to have the vaccine. She said that she didn't trust the vaccine's safety, that it had been rushed through without proper testing, that she'd had read stories on the internet about a government conspiracy, and no one could guarantee that the vaccine was safe.

Now, we are in January 2021 at this point, and that's important that we remember that.

The employer disciplined the employee, and at the disciplinary meeting, she indicated for the first time that she actually had a religious objection to the vaccine. This was the first time that the employer was made aware, at the disciplinary hearing. The circumstances essentially were they weren't aware of what religion she was or anything like that. This was all new to them.

Really important point, and seems to have been for the tribunal as well, was that during that meeting, the director of the home advised the employee that their insurance position having clarified . . . Their insurer had told them that as and from, I think, around the March time that they wouldn't indemnify the home in relation to risks assessed with unvaccinated staff, whether that was passing the virus on to residents or visitors to the home.

Now, ultimately the decision was made by the employer on this occasion. They said the claimant didn't have a reasonable excuse for refusing the vaccine and that if she remained unvaccinated, she'd pose a health risk to the residents, to staff, to her co-workers, and to visitors. And they made the decision that they couldn't make an exception for one employee, that that would be unfair to everybody else. And the employee was dismissed from her employment.

There was an appeal. It wasn't upheld, and she brought a claim for unfair and wrongful dismissal. Interestingly, then, the tribunal rejected both of those claims, and they said that the dismissal wasn't wrongful and it was, in fact, fair in the circumstances.

Now, a couple of things that were brought out as a result of the case. What they said was they looked at whether the dismissal impeached or had an issue arising in relation to respect for life under Article 8 of the convention.

But what the tribunal did . . . and this is interesting from just what we talked about. The tribunal said that the home had a primary legitimate aim of protecting its staff, its residents, and its visitors, and had a secondary aim of not risking breaching its insurance policy also.

So you can see that the tribunal are . . . that is a consideration for them whenever they are dealing with these cases.

They said that the mandatory vaccination policy corresponded for the pressing need in relation to reducing the risk to residents at the home. So there was a clear justification for it.

They also said that they felt that they claimant's . . . that she was in genuine fear. They didn't dispute that. They weren't saying that this was something that she had contrived. They were saying that there was a genuine fear and that she was sceptical of the vaccination. But they also said that she had no medical authority or clinical basis for not receiving the vaccine. And I think that's interesting from the tribunal's point of view.

Again, this is a decision of first instance. It is an English decision, but we can take out the lessons from it.

What they did say was that they balanced the arguments against that the home was a small employer with a legal and moral obligation to protect its vulnerable residents. And it accepted the home's legal submission that its decision to impose vaccination had to be seen in light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time.

And I think that's important, because what we can garner from that is . . . again, the tribunal will base the evidence available at the time of the decision. It will not say, "Well, this is what we know about the situation now". They look at it from the point of view, "What was in the mind and what was available to the employer at that time?"

They said that the end position of the vaccine, to say that it was mandatory, was proportionate in relation to the aims that they were trying to achieve.

And also what they went on to say was that it was reasonable for the home to conclude that the employee was merely sceptical of the official advice that had been provided. So the home had been provided with advice.

They also during the meeting referred the employee to resources for her to research and to look up in relation to the vaccine.

Now, the claimant at the hearing did bring an argument to say that they haven't done anything to educate her or support her in her views. But the employer had referred her to PHE, the Public Health England advice, and they also said that the other advice was widely available on the internet.

What they said was that the employer did not genuinely believe that the claimant's refusal to have the vaccine was connected with religious belief, and that the fact that she raised it so belatedly, that she only raised it at the actual hearing was a concern for them in their mind.

So essentially, the finding was that the dismissal was within the range of reasonable responses.

Again, it is a case of first instance, but it is an interesting one. And you can see the sort of view that the tribunal have taken here, which is the approach that the employer is taking steps that they view as reasonable and proportionate.

Christine: Yeah. I mean, I think it's really interesting, Seamus, that you say that the tribunal putting themselves in the shoes of the people making the decisions at the time. So they're having to cast their mind back a year. I would wonder whether that outcome in that case would still be the same if it was January 2022.

In the case, they said that she was failing to follow a reasonable management request. Is that now a reasonable management request?

And we've got someone here making a point. We now know that unvaccinated staff can pass on the virus, but also vaccinated people can pass on the virus. So is it really a legitimate aim? But I suppose what they knew then . . . we weren't aware that the vaccine lost its power, so to speak, and we weren't aware that vaccinated people could pass it on at that time.

Seamus: No.

Christine: So I don't think the tribunal is trying to remember all the intricacies of this pandemic as it played out

Seamus: Yeah. And the other interesting aspect is we have now come across . . . I mean, the government in England have rolled back in relation to their position that anybody that worked for the NHS that didn't get vaccinated was going to lose their job. Last week, we did see them roll back from that.

Now, there hasn't been a decision made in Northern Ireland in relation to that at all, but you can see that there is this . . . And whether that's an issue in and around, "We can't afford to lose any more staff, because we're so under pressure with the staff that we have", or whether it's on the position of, "We see the light and we're maybe coming out of the pandemic", you can see things starting to roll back there. And it's interesting to see what a tribunal would do at that point.

The case of X v Y

The other case is that . . . there's a case X v Y. It's a 2021 case. Again, it's on philosophical beliefs. That case was simply around that the person was very fearful of having the vaccine and the tribunal held in that case of X v Y. They said, "We don't doubt that. We believe the claimant had had a genuine concern". But what they also said was that it wasn't a belief that was protected under the Equality Act in England. They said this was because it was a reaction to the threat of physical harm, and the need to take steps to avoid or reduce the threat.

So it's not that the tribunal are coming back in every instance and saying, "We don't believe you and that's the reason why", as in what they did in Allette. The circumstances were they were saying, "We get it. There was a genuine fear, but it just didn't qualify as a protection under the Act".

Worthwhile to mention there is another case there, which is the case of Best v Embark on Raw Ltd. Again, this is a decision of first instance that has just come out very recently, but it is an interesting case.

Ultimately, the background is the claimant worked in a pet shop in England. She was vulnerable and had a very heightened fear of COVID-19. So this was going back to the April, May, June 2020. She raised concerns with her employer about steps that weren't being followed, that they had implemented steps in relation to wearing facemasks and social distancing.

But she complained to her employers that the staff weren't following those guidelines and it was putting her at risk. The employer did issue a memo to the staff to say, "We would remind you to do this".

But on foot of that, a member of staff came back and said, "Well, listen, I feel I'm being harangued every day, and her response is unreasonable". Then what the employer did was they issued the employee with a verbal warning to say, "We are concerned that your reaction is disproportionate", essentially.

And then following that, the husband of the husband and wife team that ran this business made a decision that they were going to dismiss her, and she was dismissed from her employment.

Now, it looks to me it was pretty much a penalty kick in relation to it was an automatic unfair dismissal. She didn't have the two-year qualification that's required in England, but they didn't follow any procedure. They brought her in. She asked for a meeting before she returned to work, and in the meeting they just dismissed her.

And interestingly, what the tribunal said was, "Well, it's unfair because when she raised her complaints, you didn't do an investigation in and around it. You just sent a memo out to staff to say, 'You have to adhere to the guidelines'. But yet, when somebody made a complaint about her, you did an investigation and you dismissed her". And they said that it wasn't a reasonable response

But also they said that she had been dismissed because she raised these complaints, she raised health and safety concerns. They awarded her £18,000 in relation to her damages for her whistleblowing aspect, because they directly related the dismissal to the fact that she'd raised concerns about her health and safety.

There are a couple of other small things in that case, which I just thought were important. I mean, there was a finding by the tribunal that the principal reason for the dismissal was that she had made protective disclosures.

And the tribunal went on to say that by not investigating the employee's complaints, or the previous action of the other employees, that the tribunal had imposed a detriment, and subsequently dismissing the employee was a direct result of her protective disclosure and the breakdown in the working relationships that was caused by the complaints that had been raised.

The other thing that they said was that they felt that there was no opportunity for the employee to raise a defence or to give comeback in relation to the issues that had been raised, that they simply just brought her into the meeting and had said right away the decision had been made that they were going to dismiss her in any event

But it's an interesting case, and certainly in and around that aspect that she didn't qualify in relation to the unfair dismissal as a result of the fact that she didn't have her two years, but they still made these findings.

There were other findings that they made, too. There were other elements in the claim. There was a finding that it was an unfair dismissal and she received quite a bit in compensation as well.

Interestingly, just to mention, whenever they were looking at the schedule of loss in relation to the case, they did and say that due to the pandemic, it was going to be harder for her to obtain alternative work. That's interesting in terms of what a tribunal will consider when it comes to future loss and compensation and things like that as well.

Christine: Oh, interesting, then. Are we going to be looking at bigger tribunal awards for the next while as these COVID cases start trickling through? That's an interesting one. Not one I thought of.

Seamus: Potentially, yeah.

Christine: Yeah, that's really interesting. So let's see. Do you have any key . . . what would be your takeaways on that kind of case law for us today, Seamus?

Seamus: With regards to the case law and what it is saying, it still for me is a matter of going back to basics. The other thing is from my own experience, I've had a couple of cases that . . . one redundancy case that I ran in the tribunal. And it's clear to me that the tribunal are not going to forgive or say, "It was really difficult during that pandemic, employer. That's all right. Don't worry about the dealings that you've made".

There's no excuse when it comes to the statutory requirements that are in place. The tribunal does not have a power to say, "Oh, that's okay. Don't worry about it". I think sometimes what I'm seeing is that people are almost flabbergasted that they would be expected to adhere to . . .

Christine: To the law?

Seamus: . . . statutory provisions. And I get it and I understand it. I act for a lot of employers, and I get it and I understand it, but I think that's one trap to avoid in relation to how you think cases are going to proceed.

So for me, it is about following the statutory procedures, remembering that there is the one, two, three procedure that needs to be followed.

Secondly, I think it's a bit balancing the rights of your organisation and the employees that work for it. Often, this is coming down to one employee that feels that they're being treated differently and less favourably. I think you just need to exercise caution. No rash decisions.

And particularly in the Best case where they just brought her in and dismissed her, there was a fear in that case that there were others that were going to leave and resign and leave the employer high and dry. So definitely, look into following through on your policies and procedures, making sure that you're ticking your boxes in relation to your statutory obligations as well.

Really, I think the last one is just an aspect of communication with staff as well. Really, you don't want to be getting down to a point where there is such problems arising between the employer and the employee, or an employee and the other employees. There should be clear policies and procedures in place about guidelines. Employees should be aware of what their expectations are.

And also even making clear to the employees this idea of when you have to self-isolate and when you don't. If you don't have that, that's a discussion on the phone because the person is panicking on the day that they found out that they were a close contact. That information should be available. And for me, it's about being open and making sure that the communication is good.

Christine: Yeah. Brilliant. Thanks very much, Seamus. Someone is asking if we can share the names of the cases. They'll come through in the email. I'll put together a list

Someone is just asking for clarity on whether the Best case was unfair dismissal. My understanding was that she didn't have the years of service to be unfairly dismissed.

Seamus: Yes.

Christine: But she did win on whistleblowing.